Staged interpretation of Article 1F(b): ‘serious non-political crime outside the country of refuge prior to [his or her] admission to that country as a refugee’

At first glance, Article 1F(b) of the 1951 Convention Relating to the Status of Refugees has superficial clarity. However, as State practice, the views of academics and the UNHCR reveal, what seem to be geographical and temporal elements depicted in separate clauses of the phrase – “outside the country of refuge” and “prior to … admission to that country as a refugee” – have been inconsistently applied in jurisdictions and are laden with ambiguity. This chapter critically appraises the respective positions, which range from including only crimes committed outside the geographical boundaries of the host country within the ambit of the phrase, to wholly dispensing with any geographical element and including all crimes committed prior to the recognition of refugee status. These positions are examined for fidelity of purpose and against necessary contextual and historical markers. An incursion into the Travaux Préparatoires and a study of how the clauses were conceived and constructed are particularly illuminating. This reveals an approach driven by self-interest and confusion by many State delegates as to the geographical and temporal elements of the definition, which resulted in an exclusion provision that could only be literally construed by States whose frontier admission procedures concertinaed both elements into a temporal one. The endpoint of this examination is such as to cause the authors to propose that the temporal element of the definition may be determinative and that any geographical element be structurally dispensable, at most an adjunct of the temporal limitation. A contrary interpretation would arguably undermine the text’s abiding purpose of maintaining the peaceful, humanitarian purpose of asylum and the integrity of the Refugee Convention. In applying the mandatory exclusion definition, as distinct from issues of state justiciability and expulsion concerns, there appears to be no justifiable reason for treating persons who commit serious non-political crimes, outside or inside the host country prior to admission as a refugee differently.